Security Mutual Casualty Company v. Century Casualty Company

SECURITY MUTUAL CASUALTY

COMPANY, Plaintiff-Appellee, COMPANY, CASUALTY

CENTURY

Defendant-Appellant.

No. 77-1752. States

United Court of Appeals,

Tenth Circuit.

Argued May

Decided recovery a claim

Anderson and asserted for treaty. Century reinsurance Security Mutual’s filed a counterclaim suit, declaratory judgment alleging an anti- asking for reimburse- trust violation and ment under terms of reinsurance treaty. Security

Agreeing arguments with Mutual, found the district court given of certain claims had been notice Security and Mutual held treaty not liable under the reinsurance precedent to notice was a condition since indemnify Security obligation Mutual’s the trial de Century. We reversed court’s cision, notice holding that the was a treaty reinsurance covenant precedent condition Century and not a Security payment. make Security Co. Cas. Cas. denied, Cir.), cert. 50 L.Ed.2d 137. U.S. (id. 979): We concluded as it We reverse the insofar holds Mutual is liable under for treaty the Anderson Denver, (Mosley, H. Mosley, James Colo. judgment. The of its Aviation amount Scott, Spence, Wells & and Michael F. Den- liability determined under Colo., ver, brief), defendant-ap- were on There- treaty. terms of reinsurance pellant. fore, damages is also Weaver, Chicago, (John E. A. Denison di- . . . We remand with reversed. Steele, Denver, Colo., Clough White & rections enter consistent brief), plaintiff-appellee. was on added). opinion. (Emphasis with this HOLLOWAY, BARRETT and Before interpreted remand the district On McKAY, Judges. Circuit decision and mandate allow present Mutual to evidence HOLLOWAY, Judge. Circuit by the covenant caused breach notice Casu- Plaintiff-appellee, treaty and a in the reinsurance scheduled (Security Mutual), a reinsur- alty Company hearing for that as well as for purpose, contracts, primary brought er of insurance of the amount of determination declaratory judgment this suit as a action Century under the rein- liability to Mutual's and seeking determination ‍​​​​​‌‌​‌​‌​‌‌‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌​​‌​‍then treaty. Ill R. 2-6. surance liabilities under a rеinsurance for a of mandamus to writ petitioned (Century), Century Casualty Company conducting “any from the trial court hibit ex- defendant-appellant, recovery and of its relating to a proceedings . in an penses participating appeal contract,” I writ R. breach against insureds. one of Century Cas. Co. v. United granted. Following a of an оf Ander- crash aircraft Court, insured, (10th Cir. District No. 76-1707 States Company, Century’s son Aviation 14, 1977). Century had defended Arizona suits Jan. fendant, Century granting Casualty that writ stated that Company, and Plaintiff,

earlier “intended to mandate was order the Mutual Casu- finding alty Complaint of a Company, rein- dismissed, binding surance contract was action herein are each controlled (I 35). bear the extent of its own costs. Security’s liability pay Anderson Aviation I R. 25. Security Mutual On filed a “[sjince also said that summary judgment Century’s motion for [by awarded the trial court before ap- antitrust counterclaim. On pellate decision at 531 were based 974] court denied motion on on the condition precedent theory, judg- mootness, noting of inter alia that mеnt for damages was reversed in toto with already the clerk had dismissed the “entire no for modification or for a new case, pursuant court order.” I R. Supp. theory;” award based on another 19. mandate was intended “to be a conclusive Then on moved the trial statement of the and liabilities of the court, 60(a) pursuant (b), F.R. parties,” and that we not intended “to Civ.P., judgment for relief from authorize further I proceedings.” R. 25-26. on Century sought March 31. amendment Because we believed that the mandate suf- “in a manner will that intent, ficiently indicated our we issued the reserve for determination the dollar amount writ and remanded the case “for the entry owing from under the of judgment, not for further proceedings.” tеrms of the reinsurance for costs Additionally we that noted the “scheduled expenses investigating resisting hearing should be considered a violation of .,” . I Arizona suit inter alia. R. the mandate.” I 26-27. R. 36. Century’s supporting brief to thus original Pursuant to the mandate and the argued, alia, tect its counterclaim inter that terms of the writ of mandamus the district proper relief was because of clerical 31, 1977, error, court issued an order on March oversight and omission. I R. 31-41. directing entry (I 29): Finding that there had been “no clerical Pursuant to the Mandate issued newly ev- discovered 12, 1976, Tenth Circuit on March idence, fraud, any other reason explicit terms of the Writ of Mandamus 60,” relief under district court issued of Appeals Court on Janu- instеad treated the motion as one made ary 14,1977, hereby enter a declarato- pursuant 59(e), to Rule F.R.Civ.P. Because ry judgment in favor of Defendant and a motion to alter amend a against Plaintiff. Plaintiff is liable for 59(e) ten must made within the judgment (10) in Anderson Aviation in days trial accordance with terms of the Century’s reinsu- concluded that motion agreement Additiоnally parties. untimely. between the noted that The ruling “explicitly” Clerk of Court mandamus stated that is directed to proceedings. enter were to be Defendant Century Consequently Century’s court denied Casualty Company. Plaintiff’s Com- motion from the en- for relief plaint and Action are hereby Cause of tered. I R. It is from 42—13. this order Dismissed. Each will bear its own 60 motion its Rulе costs. A copy of the Writ of Mandamus has brought appeal.1 added). is attached. (Emphasis On the same March day, clerk of the judg- district court entered a appellate The contentions stating ment that it is ORDERED AND ADJUDGED appeal contentions is entered favor of the De- mainly based on Rule F.R.Civ.P. Centu- appeal did not from the March entered on II alia, ry argues, 31,1977, dismissing the action should under Rule Century argues for clerical error under be amended F.R.Civ.P., seeking 60(a), amendment citing 60(a), coming of clerical error judgment because in judgments, mistakes orders Clerical part: provides which 60(a), within Rule and errors parts or other the record (a) Clerical MISTAKES. CLERICAL or omission arising oversight therein orders оr other judgments, mistakes in any the court at may be corrected and errors therein parts of record time of own initiative or on motion oversight or omission arising from any party any time of the court corrected says Century further that the court has on the motion of its own initiative or judgments issued power and correct notice, any, if as the рarty and after such mistake, citing due to inadvertence court orders. Trucking Transp. Ass’ns v. Frisco American have It that courts is axiomatic 170, 177, 133, 145, Co., 79 3 358 S.Ct. U.S. judg to correct power the 172; to is entitled L.Ed.2d judg containing clerical errors or ments to conform to amendment of the or mis ments due to inadvertence issued the the of this court and mandate Trucking Ass’ns v. Frisco take. American judg- for the own direction judge’s 145, 170, Co., 133, Transp. 358 79 S.Ct. U.S. ment; the effect 60(a) 172. However Rule 3 L.Ed.2d a give Century is to March 31 as entered something which may change not be used to right remedy, giving the declara- without deliberately done. See Ferraro v. has been reinsu- tory Co., Rosenberg 156 F.2d 214 Arthur M. opportuni- it any treaty, denying but accord, Blankenship Royalty v. (2d Cir.); or ty to establish value Co., (10th Cir.); 202 F.2d 79-80 Holding it; clear and that the error is enforce Practice, Moore’s Federal generally see 6A con- In addition record. Miller, 4055; Wright & Fed 11 1160.06[1] 60(b) is that relief under availa- tends eral Practice & Procedure 2854 154.1a § mistake, ble to it under the Here the district court’s inadvertence, surprise neglect; or excusable was there no Rule 60 motion stated that granted and that relief should judg in the clerical error or inadvertence 60(b) carry out the mandate of changes the Rule ment. 42. Under ‍​​​​​‌‌​‌​‌​‌‌‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌​​‌​‍appeals. court of judgment where the have made in the been rejects generally these they were neces recognized that trial court contentions, relying on the district court’s omission, oversight e. sary correct an cleri- order which found that there no Bldg. Equip. Corp., 453 g., Kelley v. Bank & newly cal discovered Cir.), (10th here the record F.2d 778 but evidence, justify- fraud or other reason court’s orders do a whole and the district as 60; no ing clerical relief under of relief for such a support granting not shown; is that motions under error purрose. 60(b) are directed to district court’s discretion, judi- res concern over the which was abused voices sound here; but judgment, been March 31 relief should have cata effect respect. The 59(e), by timely problem motion we in this sought under Rule find court closing by in the district judg- 10 the March 31 case days ment, when read Century’s whereas motion was the March 31 record, was no 14 shows that untimely, filed until entire Century to re- ruling alia. Co., Inc., Superior Cir., Corp. Products 620 224 Allied Material v. 1a. See also 1980). 1066

cover on reinsurance treaty agreement. and thus no ranee That would run counter any preclusion basis for claims rulings all their intent as plainly agreement. on the manifested the record. there is any ambiguity If obscuri Thus, sрe there is no hold ty express or if the fails to judi cial res relief based on the

rulings clarity accuracy, case with cata problem since the did not findings reference preclude recovery of further Cen purpose entire record for the of deter tury on the reinsurance and Centu mining what was decided. Moore v. ry’s rights declaratory determined Harjo, (10th Cir.). And If fails where one the formal of dis obligations under satisfy interpreted light missal it should be agreement, for which was held liable opinion, findings and conclusions in the Huffman, declaratory judgment, case. then further re Great Lakes Co. v. 1070, 1071, U.S. lief may S.Ct. L.Ed. be obtained Century. See 2202; McCormack, U.S.C. Powell § 1944, 1952, U.S. L.Ed.2d In our case clearly encompass- the rеcord 491; Works, Kaspar Wire Eng’r Inc. v. Leco es prior appellate rulings, well as the Mach., Inc., 537; & supra, 575 F.2d at noted, record in district court. As McNally v. American States Ins. plainly decided twice that Century is Cir.); (6th F.2d Refining entitled Sinclair to recover on the reinsurance trea- ty. opinion Burroughs, ‍​​​​​‌‌​‌​‌​‌‌‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌​​‌​‍(10th The first Co. v. 133 F.2d held that “[t]he [Security amount of Cir.); Miller, liability Wright & Federal Praсtice Mutual’s] should be determined under the terms of Procedure, and 866-67. § the treaty.” reinsurance 531 F.2d at 979. In the proceeding later mandamus our opin- Ill ion—which was appended by the district judge Century argues his that it is entitled directing to entry the to that our have the March 31 earlier amended mandate —stated had been “intended to order entry 60(b)(1) provisions the of a under the Rule on mis- judgment finding that the take, inadvertence, reinsurance con- surprise or excusable binding tract was the and controlled extent neglect;2 that here to some extent there Security Mutual’s liability pay to the was judge, a result mistake of the the judgment.” Anderson Aviation I R. 25. counsel, clerk arguing and that counsel “in- advertently excusably, . and failed In declaratory actions fa comprehend the extent of the principles judicata miliar of res cannot be clerk, entered in light the of the man- applied automatically judgments dismiss appeals date of regarding the court of the ing suits without stated Kaspar reasons. determination of liabili- Mutual’s Works, Mach., Wire Leco Eng’r Inc. v. & ty”; judge adopting the erred in Inc., Cir.). Here, 575 F.2d as a correct state- read background appel appellate ment of view of rulings late his intent in judge’s and the district di directions, twice, given rection court’s judgment, for the clos ing of the case amount of liability of dismissal Mutual’s clearly not a determination Brief determined. right of Century to Appеllant recover on the reinsu- at 8-11. purposes provi- proceeding (1) pertinent following For of this case reasons: 60(b) mistake, surprise, sions of Rule state: or excusable neglect: (6) any ... other reason upon On motion and as terms operation of relief from the just, legal the court relieve a or his representative order, judgmеnt, from final lia- Mutual’s earlier mandate responds that remedy under be determined un- “should appropriate pursue bility

did treaty.” limit 10-day 59(e) time der terms of the reinsurance any abuse of dis- Thus, construing has demonstrate the mandates failed of relief Rule 60 in the cretion denial hearing to determine barring a whose court district was error. liability argues, was сonsistent one of amend- is thus not question The in the mandamus opinion appellate in the oversight or omis- judicial ment to correct Appellee 7-8. Brief proceeding. judicial to correct sion, but of amendment Century’s primary arguments is One granted under has been error. Relief misinterpret judge clearly district in theory mistake of law 60(b)(1) on appeals the court of mandate of ed the g., Lairsey v. Advance E. some instances. Rocky Century relies connection (5th Cir.); Abrasives v. Tecon Tool & Machine Co. Mountain & Machine Co. Tool Rocky Mountain ‍​​​​​‌‌​‌​‌​‌‌‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌​​‌​‍(10th Cir.). There we Corp., 371 F.2d at 597. Such Corp., supra, Tecon amending date from did an order affirm however, must, sought within the of “a a correction interest ran as which 60(b) that thе mo- of Rule time restraints award,” citing id. at palpably erroneous time, and made “within a reasonable tion be course, (6). the case is 60(b)(1)and Of (2), (3) more than (1), for reasons ours in that the district different Here the one year mistake, error or recognized the judge there 10-day time limit judge applied the judg judge here found while and, 59(e) as Rule said him. ment entеred was one intended etc., for relief un- was no clerical question whether under The did not make a and thus der that Rule possibly 60(b)(6) should 60(b)(1) of the time of ruling on reasonableness and corrected have amended the Rule 60 motion. filing law. or mistake of error because that our man- there are factors favor judge the district misread agree must misrеad,3 and were created confusion dates The appellate mandates. statements shown to prejudice is proceeding opinion in mandamus filing of the Rule by delay until Mutual for court had earlier remanded that this Lairsey Advance July 14. v. 60 motion on not for further “the of Co., supra, 542 F.2d at 930. Abrasives hear- proceedings” and that the “scheduled Nevertheless, was made in the reference ing of the should be considered violation of “115 delay order to district court’s conjunction in must be read mandate” filing until days” from the sought that mandamus was fact April on 11 an fact that motion and to the claim hearing hibit the Mutual’s motion for denying Security order of against Century for breach for Century’s coun- summary judgment against theory plainly the notice —a it clear that the entire made terclaim had proceeding. We rejected in the mandamus I R. 42. The dismissed.4 of case had been again therein the terms repeated 14, brief filed memorandum 4. Mu- 3. connection we note In this support 60 stated of Rule motion in 1977 itself believed the counterclaims tual 31, appаrent by disposed that the entire case “[i]t not been of 1977, by until the order of Court This borne the fact been closed out had denying April Security dismiss the motion the Motion 8 filed Century. That summary of Centu- of dismissal counterclaim of for antitrust is 11, ry’s against Security April Mutual. As holds the Motion counterclaim 1977and dated noted, already court denied motion on dis- the district this the clerk had moot because ” April 11 on that the counterclaim R. We feel the 1 39. the ‘entire case.’ missed brief tury moot, out, alia, pointing clearly acknowledges Cen- awareness clerk “dis- March missed entire case from dismissal case, pursuant to court or- entire April 11 order. Supp. R. 19. der.” April parties Century. say order should have made Thus wе cannot there was grounds 60(b)(1) rule abuse aware such of discretion. relief on the of law theory. mistake See sum, err In the district court did not Lairsey supra, Abrasives v. Advance denying 60 for relief under Rule the reasons explained. we have If payment does not make accordance with Considering all the circumstances agreement and thе declara- any showing the absence of reasons tory judgment Century, in favor of then delay order until by Century relief be obtained July 14 when the motion under Rule was contemplated by Declaratory Judg- filed, we cannot hold motion was denying ment Act. The order the Rule 60 the constraints of the Rule. affirmed, motion each bear- sustain We therefore the order re ing appeal. its own on this costs lief 60(b)(1). under Rule AFFIRMED.

IV McKAY, Judge, concurring: Circuit We must also consider whether relief majority opinion I concur in the in all granted should have been under Rule respects other than the discussion of the 60(b)(6) “any other reason 60(b). timeliness of the motion under Rule operation 31, have made clear that the March Under this provision power there is “to court, order and of the trial judgments vacate whenever action is read, properly Century Casualty sustain appropriate accomplish justice,” Klap Company’s interpretation the reinsu- States, prott United 335 U.S. Century may and insure that 266, a “grand 93 L.Ed. reser directly agreement enforce terms equitablе power justice voir of do in a (if with) complied separate in a action particular Co., Inc., case.” Pierce v. Cook & respect which is in no barred otherwise (en Cir.) banc), cert. diminished the order and en- denied, 423 U.S. 96 S.Ct. tered trial court or our affirm- L.Ed.2d 89. maj. op. ance. effect, we confirming appellant’s The decision ‍​​​​​‌‌​‌​‌​‌‌‌​‌‌​​​​‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌​​‌​‍whether relief should interpretation of previous orders and granted 60(b)(6) under Rule is discretion thereby assuring requested. the relief Ac- ary ruling should not be disturbed cordingly, there is no for us need to invoke

except for a manifest abuse of discretion. discretionary through relief available Freight Chief Lines Co. v. Local Union No. believe, 60(b). therefore, I do not Cir.). 576-77 timeliness motion under Rule Century’s favor, we noted that our man 60(b) need be decided. dates caused confusion preju

dice to delay

filing the 60(b) motion was shown. How

ever, the parties were made aware of the

breadth of the dis

missal district court’s order of 4, supra. Moreover, note change no unusual of circumstances

calling for as in equitable relief Pierce v. And,

Cook & supra. noted in Part

II, supra, the March 31 is not recovery

bar of further

Case Details

Case Name: Security Mutual Casualty Company v. Century Casualty Company

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 12, 1980

Citation: 621 F.2d 1062

Docket Number: 77-1752

Court Abbreviation: 10th Cir.